http://www.latimes.com U.S. Court Bars Mexican Trucks Ruling says a thorough review of possible environmental effects is required before Bush can invoke NAFTA and lift restrictions. By Henry Weinstein Times Staff Writer
January 17 2003 A federal appeals court temporarily barred tens of thousands of Mexican trucks from U.S. roadways, ruling Thursday that the Bush administration violated federal environmental laws when it granted them permission to begin operating nationwide this year. Since 1982 Mexican trucks have been limited to operating within a 20-mile commercial border zone. Last year, acting under the North American Free Trade Agreement, the administration moved to lift that restriction and argued that allowing the trucks to operate freely would have "no significant impact" on the environment. The move had been blocked pending court review. In its 3-0 decision, the U.S. 9th Circuit Court of Appeals said the finding of minimal environmental impact was based on a "woefully inadequate" review of potential health hazards from the Mexican trucks, many of which do not meet U.S. air pollution standards. The court said the U.S. Department of Transportation must conduct a detailed study of the possible environmental effects of the trucks, which burn diesel fuel. The court also ruled that the DOT must determine under the federal Clean Air Act whether the influx of trucks will make it more difficult for pollution-ridden cities such as Los Angeles and Houston to come into compliance with federal clean air laws. The studies are likely to take at least six months and, depending on what they conclude, the government might then be required to take other action, including imposing more stringent controls on the incoming trucks. During that period, entry to the U.S. beyond the 20-mile limit will be barred for 30,000 Mexican-domiciled trucks whose owners had filed applications for the vehicles to enter the country through the four border states - California, Texas, Arizona and New Mexico - under the administration's proposed new regulations. Thursday's ruling clearly affects NAFTA's breadth and addresses a key issue raised by the trade agreement's critics: whether U.S. environmental laws can be overridden in the name of spurring more trade. "Although we agree with the importance of the United States' compliance with its treaty obligations with its southern neighbor, Mexico, such compliance cannot come at the cost of violating United States law," Appeals Court Judge Kim M. Wardlaw wrote. Most U.S. and Mexican officials said that the decision was being reviewed and that there would be no further comment Thursday. Several Mexican transportation officials and union leaders, however, reacted angrily to the decision, vowing to retaliate against U.S. truck drivers headed south. "We ought to do the same: an eye for an eye, a tooth for a tooth," said Francisco Patino, a member of the transportation committee of Mexico's parliament. One longtime Mexican opponent of NAFTA said he was happy about the decision because it would lead to a backlash in Mexico against moves to allow American trucks into the country. "With the first gringo truck, we will close the border," said El�as Dip Rame, leader of the National Confederation of Mexican Truckdrivers. Mexican officials have been pushing the Bush administration for months to allow the flow of trucks to begin in compliance with NAFTA. A special arbitration court set up under NAFTA had ruled earlier that the U.S. could not permanently bar entry of Mexican trucks. But the appeals court said the DOT had acted "arbitrarily and capriciously" when it promulgated the new regulations without a full environmental review. Thursday's ruling stemmed from a lawsuit filed in May by a coalition of environmental, labor and industry groups including Public Citizen, the Natural Resources Defense Council and the California Trucking Assn. The suit contended that the Mexican trucks would dramatically increase air pollution in this country. The plaintiffs said many of those vehicles are pre-1994 trucks that are the most egregious polluters. By 2010, the Mexican trucks would emit twice as much particulate matter and nitrogen oxides as U.S. trucks, according to a study conducted for the plaintiffs by a Sacramento firm. The particulates are considered a severe environmental health problem and nitrogen oxides help form ozone, which is dangerous to the lungs. A bevy of studies has linked diesel emissions to cancer, asthma, bronchitis and urban haze. Children are particularly susceptible to health problems emanating from such emissions, the studies show. The U.S. government already has said that diesel pollution from trucks has to be reduced dramatically over the next five years, a point the court noted. In the current case, Justice Department lawyers said in legal briefs that the plaintiffs had exaggerated the increase in diesel emissions that the Mexican trucks would generate. In addition, the Justice Department contended that the plaintiffs did not have standing to bring the lawsuit because they could not demonstrate that they would suffer a tangible injury. However, the 9th Circuit judges said the plaintiffs had adequately alleged "that they will suffer harm by virtue of their geographic proximity" to the site of the claimed pollution. The court noted that Public Citizen, the lead plaintiff, had members in California and Texas who could be adversely affected. The court also rejected the government's argument that if it ruled for the plaintiffs, it "would be tantamount to restraining presidential action." The judges emphasized that President Bush is not a party in the case and that they were not infringing on his "unreviewable discretionary authority" to end the prohibition on Mexican trucks. In her opinion, Wardlaw said DOT had acted "arbitrarily and capriciously." She criticized the agency for failing to analyze the specific impact the trucks would have on major cities near the Mexican border such as Los Angeles, noting that studies showing those cities would experience a disproportionate impact already had been submitted to the government. "DOT's failure to do so indicates that it did not take a sufficiently 'hard look' at the environmental effects of its actions or at the public comments it received," Wardlaw wrote. Judge Dorothy W. Nelson, a Jimmy Carter appointee, joined in the ruling, as did Judge Michael D. Hawkins, who like Wardlaw is a Bill Clinton appointee. The judges said the DOT had failed to consider long-term effects of the influx of Mexican trucks. Nonetheless, the judges emphasized that they were not ruling on the basic validity of NAFTA, a 1992 treaty whose goal is to eventually eliminate tariffs between the U.S., Mexico and Canada. The legality of the treaty was established earlier by another appellate court. The ruling was hailed by environmentalists, unions and the California attorney general's office, which filed a friend-of-the-court brief. "I'm dancing on the ceiling," said Susan L. Durbin, deputy attorney general, who wrote California's brief. She said she was thrilled that the court agreed with California's position that "if the federal government is going to tell the states to meet federal air standards, they can't take actions that will" make it more difficult for the states to comply. San Francisco attorney Jonathan Weissglass, the lead lawyer for the plaintiffs, called the decision "a great and resounding victory for the environment" and said the court had given his side "everything that we were looking for." Chuck Mack, western regional director of the International Brotherhood of Teamsters, whose Oakland local was a plaintiff in the case, said he was "delighted that the courts have decided to step in and spare the people in California from Bush's desire to sacrifice air quality standards on the altar of free trade." David Vladeck, an attorney for Public Citizen, said he was pleased that the court had ruled clearly that "NAFTA has to be implemented consistent with U.S. domestic law." The trade agreement contains a provision stating that nothing in it overrides existing U.S. law. But Vladeck said his group and others had feared that "in the rush to implement NAFTA, important safeguards like the Clean Air Act and the National Environmental Policy would be given short shrift as they were here by the Department of Transportation." Times staff writer Reed Johnson in Mexico City contributed to this report.
